18 June 2017

Tanzania: INTEGRITY FIRST : Why MPs Do Not Adhere to Standing Orders

Photo: The Citizen
Chadema MP and shadow minister of Energy and Minerals John Mnyika gets into trouble as National Assembly Speaker Job Ndugai directs serjeants-at-arms to force him out of the National Assembly’s debating chamber recently.
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Parliament is one of the three main pillars of the state, whose most of the members are elected by people from constituencies and a few of them are found from special seats category, while 10 can be appointed by the President, according to the Constitution. Members of Parliament (MPs) have a crucial obligation to represent citizens in governing the country for the common good.

Constitutionally, our Parliament has two parts - the President being the first part and the National Assembly being the second part. The latter is mostly self regulating institution, according to our Constitution, 1977 and the statutory law - the Parliamentary Immunities, Powers and Privileges Act, 1988.

For better running of its business, the National Assembly has a full mandate to elect its leadership and make its rules - standing orders. Thus, the proceedings of the National Assembly mostly are regulated by standing orders, which MPs themselves create to guide them in conducting the parliamentary business.

But what happens, when a member does not respect the standing orders? This is a big question for today's article. Another issue, which I would like to discus is whether our Parliament in this structure, whereby the President is the first party is supreme enough to conduct its business freely and fairly under the current political environment of multiparty democracy and make all MPs feel comfortable to adhere to the standing orders.

Parliamentary supremacy

The National Assembly, which is a creature of the Constitution, is supposed to be supreme because is empowered and immune by the same Constitution from external pressure or interference by any person so that it can freely conduct its business for betterment of all citizens. Article 100 of the incumbent Constitution of 1977 provides MPs with freedom of debate, opinion and also procedure in conducting business in the National Assembly. Thus, MPs are absolutely immune from external pressures.

They cannot be prosecuted for whatever they say in the House. No civil case can be instituted in any court against MP for whatever he or she does or say in the House. However, this absolutism must be regulated from within, when the House is on session, otherwise nothing can be accomplished and that is why adherence to standing orders is very crucial.

The National Assembly as a political organ, its composition is determined by active political parties, which participate in each generation election and secure representatives. Since MPs are elected by people, it is people, who decide persons of what calibre and from which parties are to represent them in the National Assembly. Because Tanzania is a multiparty democratic state, the National Assembly draws membership from different political parties, whereby the party that chances to have majority membership is the one that has a right to provide Speaker of the House and it has powers to formulate the standing orders of its preference. Nevertheless, the standing orders are supposed to be a double edged sword that cuts everyone, who according to the Speaker's decision might have misbehaved against them. However, our National Assembly is complained about for not invoking its standing orders fairly between the minority and the majority.

It's well known that political parties compete to get people's approval to lead the country. The party, which gets the majority of votes is the one, which forms the government of the day. The President thus is at liberty to form his government from his own party after the general election, as is the case now with CCM. While the President enjoys the cabinet of his choice and, therefore, runs the government without political friction, Speaker of the National Assembly may not enjoy the monopoly of leadership that the President enjoys because all MPs have freedom of opinion even those of his party.

Those from the opposition can behave like orphans, who always cannot be satisfied with whatever treatment they get from their guardians, thinking that because they are orphans they cannot be treated well like children with their parents. MPs from the ruling party are sure of not easily punished using the standing orders because the Speaker is theirs. This is the situation of Tanzania, whose National Assembly always gets its Speaker from the majority- CCM.

What kind of Speaker Tanzania needs?

There is a perception among opposition MPs that standing orders are unfairly applied because the Speaker too is a member of a political party. The erstwhile Constitutional Review Commission (CRC) knew very well this problem and that is why it recommended in its draft Constitution that the Speaker must be an ex-officio member. Unfortunately, this recommendation was rejected by the ruling party when they were finalising the proposed Constitution.

Kenya's Constitution of 2010 has adopted neutrality by providing that the Speaker must be an ex-officio member (Article 97(1)(d) and Article 98(1)(e). Although it is not bad for the Speaker to be an MP because even the Congress of the United States of America, Speakers are members of Congress, in fledgling democracies as it is in Africa, where people can easily place political interest before national interests, we need to look careful how we constitutionally establish and manage our parliaments for better performance

How fairly can standing orders be invoked?

What helps the Speaker to control proceedings in the House are standing orders, which provide punishment at different levels from lenient to severe ones, according to standing orders Nos 72, 73 & 74. Ironically, not all MPs respect the Seat in line with the standing orders.

We sometimes witness chaos and sometimes violence in the House because of the misbehaviour of some MPs or unfair decisions taken by the Speaker. This is taken for granted by the opposition that the Speaker is always after suppressing opposition MPs in the House and favours those from his party.

To a certain degree, this perception has some truth. For instance, many of those, who have been facing tough decisions of the Speaker are from the opposition. All MPs from the opposition know exactly what they are supposed to behave in the House according to the standing orders, but do sometimes they misbehave to protest against Speaker's unfair treatment or simply because they think they cannot be treated fairly due to their political differences. This is what is happening in our National Assembly.

Review of standing orders on punishment is crucial

Recently, two MPs from Chadema were severely punished because of disrupting the House sessions and disrespecting the Speaker against standing order No 74. They were suspended not to attend House meetings almost for one year. MPs Halima Mdee and Esther Bulaya were accused by Speaker of notorious violating standing orders and always disrupting House proceedings.

On that particular day, Speaker Job Ndugai was annoyed by unruly MPs and while in a mood of losing temper, quickly directed the standing committee for parliamentary rights, ethics and powers to meet and consider appropriate punishment for Mdee and Bulaya, according to standing order No 74.

In my opinion, standing orders Nos 72, 73 and 74(1-4) are specifically clear as what rules are supposed to be, but there is a problem within standing order No 74(5) and (6). These sub-clauses of standing order No 74 cannot be invoked fairly under the current political hostility between the minority and majority in the House and, therefore, they need to be reviewed. If the House as a whole can overrule the committee's decision, then why having the committee responsible for disciplining MPs?

For instance, standing order No 72 allows the Speaker to issue lenient punishment, while standing order No 73 and 74( 3) allow the parliamentary committee of rights, ethics and powers to issue appropriate action against misbehaving MP after affording him or her opportunity to be heard. The punishments prescribed in standing order No 74(3 (a) and (b) are reasonable enough to correct an MP and make him or her continue to represent heir people.

There is, therefore, no need to have standing order No 74(5) and (6), which in principle it overrules and thus conflicts with the preceding standing order No 73 and 74(3). For the National Assembly like ours, which is politically divided on political interests, standing order No 74 (5) and (6) is very awkward and dreadful in particular for opposition MPs, who are still the minority because it can easily invoked by the majority to punish the minority unfairly.

In the case of Mdee and Bulaya, the parliamentary committee for rights, ethics and powers already proposed a punishment, which I think was proper, but again one MP from the ruling party stood up and proposed a heaviest punishment, which the Speaker quickly accepted and was endorsed by the House without consideration. That can rightly be perceived that the majority punished MPs from the opposition unfairly.

Going by this trend, what will prevent the majority MPs to suspend any MP from the opposition for two or even five years? Thus, there is a need for the National Assembly to review Part Six of the standing orders and make sure the standing orders that provide punishment not to go beyond the general principles of having the legislature.

Currently, political enmity between CCM and Chadema is at a high degree to the extent that CCM uses its majority to unfairly punish Chadema MPs and leave those from CCM even, when it happens both MPs misbehave. Since standing orders Nos 72, 73 and 74(1-4) were good enough because they specifically provide reasonable punishment, there was no need in having general clauses as in standing order No 74(5) and (6), which can unfairly be invoked and punish MPs as they did for Mdee and Bulaya.

The author is a lawyer/journalist.

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